Opinion
October 31, 1994
Appeal from the Supreme Court, Kings County (Vaccaro, J.).
Ordered that the order is affirmed insofar as appealed from, with one bill of costs.
There is no dispute that the plaintiff was not responsible for causing the leak that damaged its property. Although a question of fact exists as to whether the plaintiff could have prevented the damage to its property, that question should be considered with regard to the issue of mitigation of damages (see, e.g., Spier v. Barker, 35 N.Y.2d 444, 451; see also, Bellier v. Bazan, 124 Misc.2d 1055, 1058). As the defendants failed to raise the existence of any bona fide issues of fact to warrant a denial of summary judgment on the issue of liability, the court properly granted the plaintiff's motion. Ritter, J.P., Copertino, Friedmann and Florio, JJ., concur.